Arbitration

~A sophisticated "coin toss~

By Peter S. Saucier

The late Marge Schott, former owner of the Cincinnati Reds, was once fined by the Commissioner of Baseball because she agreed with an arbitration-eligible player to flip a coin as means to determining his salary for the next year, bypassing the arbitration procedure. The General Manager of the Reds defended Ms. Schott's actions by observing that arbitration is nothing more than a sophisticated form of coin tossing. Indeed, the conclusion is not altogether disagreeable, with the codicil that arbitration is sometimes less predictable, and the results more silly, than merely flipping a Sacagawea dollar.

Here is a sample (only a sample) of some interesting employment arbitration decisions published during the last six months:

A bartender at the Frenchman's Reef Lobby Bar was visited by an undercover investigator who purchased two drinks. He paid cash and watched the bartender scan a coupon for free drinks before placing it in the register and pocketing the cash. The bartender had been caught by another undercover agent pulling the same trick a year earlier but was not terminated. Presented with these facts, the arbitrator put the bartender back to work. His reasoning speaks for itself: "In the Arbitrator's opinion, while what [the bartender] did was serious, it was not as serious as if he did not record the sale at all and simply pocketed the money. That would have been a clear case of stealing and embezzlement. In this instance [the bartender] substituted one form of payment for another. The complimentary drink coupon had a value that was equivalent to, or even greater than the cost of the vodka/cranberry."

The Allied Aviation Fueling Company, feeling the economic pinch that is hurting the aviation industry, negotiated an agreement with its union that required union-represented fueling employees to work on Thanksgiving as a regular work day. On Thanksgiving Day 2004, 42 percent of the workforce called in sick. As a result, in order to keep the planes flying, some supervisors grabbed fuel lines and helped those who did show up for work to get the job done. It seems the contract provided that if supervisors did bargaining unit fueling work, an employee on duty who grieved was entitled to one hour of pay for each plane fueled by a supervisor. Because Allied did not discipline the 42 percent of absent employees (or investigate whether their absences were the result of legitimate illness), the arbitrator said that the grievant was entitled to one hour of pay for each plane fueled by a supervisor that day – 26 extra hours of pay for one day.

After taking copious amounts of time off for the birth of her baby and additional ailments, a school clerk found that she had a drug problem, and took even more time on leave. While she was on leave, the school employer discovered that she was going to her husband's motorcycle business and working on the computer on a regular basis. An investigator also approached the business where the woman waited on him at the counter. The school fired her for working while on leave from the school. Not so fast, said the arbitrator. The woman "said" that she used her husband's work computer for hours to do personal chores, that she only visited the business because she was lonely, and that she had only waited on someone that one time because the sales person was away, but had never otherwise done so. An astonishing coincidence? Well, not to the arbitrator; somehow, it all seemed quite reasonable to him. He put her back to work, ordering that she be "made whole in every respect."

Bruce Boice, a bus mechanic for the Southeastern Pennsylvania Transportation Authority, a loyal member of Local 290 of the Transport Workers Union, thought nothing about stashing repair orders in his locker and falsely certifying that safety-sensitive repairs had been performed. The buses were returned to the roads with Boice's imprimatur. When SEPTA discovered the problem, Boice lost his job. A labor arbitrator decided that Boice should get a second chance, and that decision was upheld on the initial appeal. Thankfully, the Pennsylvania Commonwealth Court, paying attention to reality and current events, reversed that decision.

A Teamster-represented bus driver in Baltimore was terminated when he reported to work at about 1:30 p.m., before his scheduled 2:15 p.m. shift, smelling like beer. When he was confronted, the driver admitted he had a beer "at lunch." He was fired because federal law and Company policy forbid drinking any alcohol for at least four hours before driving public transportation. At arbitration, the union presented two creative (if preposterous) arguments: (1) the driver never said that it was an alcoholic beer, and the Company never tested him – it was non-alcoholic beer; and (2) "lunch" is an undefined term – he ate lunch before 10:15 a.m. That made sense to the arbitrator in question, who put the driver back to work with full back pay.

Many employers whose non-exempt workforce is represented by labor unions flatly refuse to consider entering arbitration agreements with their unrepresented employees; they have real, hands-on familiarity with arbitration and how it operates. The touted virtues of a quick, cheap, final decision are far outweighed by the vagaries of a preposterous conclusion with almost no chance of appeal. Indeed, most of them would rather flip a coin.

Peter S. Saucier works at Kollman & Saucier, P.A., where he represents management in Labor and Employment matters.